Fisher & Phillips LLP: Another Case to Watch in the Ongoing Debate Over the Computer Fraud & Abuse Act

The past year has produced noteworthy decisions from the Sixth, Ninth and Eleventh Circuit Courts of Appeals - and recent Congressional hearings
- regarding the applicability of the Computer Fraud & Abuse Act
("CFAA") to employers' claims that disloyal employees accessed their
employers' computers in order to take trade secrets, source code, and
other valuable electronically stored information. The CFAA provides a
federal, private right of action against any person who "knowingly and
with intent to defraud, accesses a protected computer without
authorization, or exceeds authorized access, and by means of such
conduct furthers the intended fraud and obtains anything of value... ."
18 U.S.C. § 1030(a)(4).

The recent decisions and congressional
hearings are fueling one of the hotter debates within the judicial and
legislative branches of the federal government: the extent to which
Congress meant to "federalize" certain computer-related disputes between
employers and their employees. On this legal question, there is a
continuum of interpretations of the CFAA. Some interpret the CFAA as
giving employers a federal cause of action against their disloyal
departing employees, in what has been perceived as a pro-employer
interpretation. On the other end of this continuum are what would
appear to be employee-centric opinions holding that the CFAA does not
create such a right in employers.

The next case to watch in this debate over the scope of the CFAA might be Metabyte, Inc. v. Nvidia Corp., et al.
According to the Complaint (available in .pdf format below), Metabyte
is an information technology services company that produces software and
provides product development, consulting and related information
technology staffing services. Metabyte claims that it produced an
original 3D technology, which consists of executable source code and
enables a three-dimensional display through specialized glasses used for
viewing computer screens. The primary application for this software
and the glasses is for personal computer-based gaming, according to the
Complaint.

Metabyte alleges that it developed
its 3D software through the investment of millions of dollars and the
efforts of its software developer-employees, and Metabyte has made the
conduct of these software developers the epicenter of its Complaint.
According to Metabyte, these employees - now Nvidia's co-defendants -
left Metabyte and joined Nvidia, where they allegedly developed a 3D
technology for Nvidia that is similar to Metabyte's 3D technology. But
before Metabyte's former software developers left, Metabyte contends,
they improperly copied the source code for Metabyte's 3D technology,
then used this source code to create Nvidia's competing 3D technology.

At the moment, only Metabyte's side
of the story is public. However, the allegations in the Complaint set
the stage for another "employer versus allegedly faithless employee"
showdown. The disposition of these allegationswill turn, among other
things, on the district court's interpretation of the scope of the CFAA,
the accuracy of the allegations against Metabyte's former software
developers, the timing and circumstances of the purported accessing of
Metabyte's computers, and the extent to which Metabyte took steps to
restrict the access of its software developers.

This blog will keep its eye on Metabyte, and any decisions regarding the CFAA that result from this case.

Brent Cossrow is a partner in
the Employee Defection & Trade Secrets Practice Group of Fisher
& Phillips. Mr. Cossrow's practice focuses on e-discovery and other
electronically stored information issues. As always, please feel free
to share your thoughts and questions in the comment space below.